The Department of Labor has recently provided us with some additional guidance and interpretation of the Families First Coronavirus Response Act (FFCRA). For a summary of the FFCRA’s requirements, please see our previous blog post.
What Did the DOL Clarify?
- The Effective Date. The DOL has stated that the effective date of the FFCRA is April 1, 2020. In our previous blog, we initially calculated an effective date of April 2, 2020 based on the language in the FFCRA.
- Updated: Small business Exemption Does Not Apply to Emergency Paid Sick Leave. The FFCRA provides that the DOL can issue regulations for good cause to exclude a small business with less than 50 employees from the 12 weeks of Emergency Family and Medical Leave Expansion Act “when the imposition of such requirements would jeopardize the viability of the business as a going concern”. The DOL has clarified that this exemption does not apply to the two (2) weeks of Emergency Paid Sick Leave Act; however, the DOL guidance suggests that it may apply to paid sick leave due to caring for a child whose school or child care facility has been closed or is unavailable due to COVID-19 precautions. We are waiting for clarification on this issue from the DOL. The DOL has not yet clarified how small businesses can apply for this exemption; however, the DOL suggested that small businesses document why they feel that they meet the exemption and indicated that it would provide the specific criteria that small businesses must meet in order to qualify later in April 2020. The DOL has recently issued guidance explaining the criteria that a business will need to meet – see our blog post here. As soon as we learn more, we will provide this to employers. Stay tuned.
- Updated: Employers of Health Care Providers Can Exclude Certain Employees from Paid Leave. As mentioned in our previous blog post, the FFCRA stated that the DOL could issue regulations to exclude certain health care providers and emergency responders. The DOL has confirmed in recent guidance that employers of an employee who is a “health care provider” or an “emergency responder” may elect to exclude these employees from the paid leave required by the FFCRA. The DOL issued guidance expanding the definition of those covered under this exemption as follows: “a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”
- Updated: 30-day Enforcement Delay for Good Faith. The DOL provided that they will “observe a temporary period of non-enforcement for the first 30 days” following April 1, 2020 for employers who have “acted reasonably and in good faith” to comply with the FFCRA. The DOL provided that good faith exists when (1) an employer remedies any violations as soon as practicable; (2) the violations were not willful; and (3) the employer provides the DOL with written commitment that it will comply in the future. Although the DOL has indicated in its Fact Sheet for employers that this 30-day period will start as of the effective date of the Act, the DOL issued an internal bulletin to staff stating as follows: “The Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act” (emphasis added).
- Calculating Leave for Part-time Employees. The DOL indicated that small businesses should calculate the hours for a part-time employee based on “the number of hours the employee is normally scheduled to work”; however, if the employee’s hours vary, then employers may use a six-month average to calculate the average daily hours worked.
- Regular Rate of Pay for an Employee. The FFCRA provides that employers must calculate paid leave for an eligible employee based on the employee’s regular rate (or 2/3rds of the regular rate for expanded family and medical leave). The DOL clarified that the regular rate of pay for an employee is the average regular rate paid over a period of up to six months prior to the date that the leave it taken. This calculation includes commissions, tips and/or piece rates.
- Leave Runs Concurrently. The 12 weeks of leave under the Emergency Family and Medical Leave Expansion Act and the two (2) weeks (80 hours) of leave under the Emergency Paid Sick Leave Act run concurrently. In other words, an employee is only eligible for a max of 12 weeks of leave if he/she/they are eligible under for both types of paid leave under the FFCRA.
- FFCRA Leave is in Addition to Employer-Provided Paid Leave. If a business provides paid vacation or sick leave or PTO to its employees, they must also provide the paid leave benefits under the FFCRA. Employers do not get a “credit” for voluntarily providing paid time off benefits to their staff.
- FFCRA Paid Leave is Not Provided Retroactively. Employers are not required to provide paid leave until the FFCRA’s effective date of April 1, 2020.
- How to Count an Employer’s Total Number of Employees. The DOL indicated that to determine if a business has less than 500 employees, employers should count their employees as of the date that an employee’s leave is to be taken. Total employees include both full-time and part-time employees, employees on leave, temporary employees who are jointly employed by your business and another employer, and day laborers supplied by a temporary agency. Individuals properly classified as 1099 contractors are not included in the employee count. Please review the DOL Q&A for more information on joint employment and integrated employers. If you have a question about your 1099 contractor classifications, please let us know.
FFCRA Poster is HERE
The DOL prepared an FFCRA poster that must be posted in a conspicuous place at the employer’s physical location. Employers can meet this requirement if they email or mail the poster to employees or upload the poster onto the employer’s internal or external website. See the DOL’s FAQs on the poster requirement.
Here are Some New DOL Employer Resources:
- Here is a link to the DOL’s Q&A on FFCRA
- Here is a link to the DOL’s Fact Sheet on the FFCRA for Employers
- Here is a link to the DOL’s Poster on the FFCRA
- Here is a link to the DOL’s FAQs on the poster requirement.
For additional questions, please contact us or schedule a consultation.